The Office of the Ombudsman in Hong Kong has concluded that HKFP’s complaint against the police’s refusal to disclose the production cost of a promotional video was unsubstantiated. But the government watchdog said “other inadequacies” were found during its month-long probe.
HKFP received a seven-page investigation report from the Ombudsman on Thursday, after it agreed last March to investigate the police force for alleged breaches of the Code on Access to Information. The force had declined to answer HKFP’s questions about the cost of its tax-payer funded video “Guarding Our City.”
The slick, 15-minute promo – released on January 23 last year – featured officers countering fictional acts of terror in Hong Kong. It was produced to “project the positive and professional image of the force,” police said.
HKFP had cited the access to information code to obtain the total production cost of the video, a list of expenses linked to it and the amount of government funds spent on disseminating the clip on various platforms.
However, police rejected the request by saying that the disclosure would harm or prejudice negotiations, commercial or contractual activities, or the awarding of discretionary grants and ex-gratia payments by a government department.
It also said the contractors involved in the production objected to such information being divulged.
The Ombudsman sided with the force which argued that the details requested may fall into the category listed in paragraph 2.9 (c) of the code, which stated that the disclosure of such information would “harm or prejudice the proper and efficient conduct of the operations of a department.”
But the justification emerged during the probe and was not cited when police originally turned down HKFP’s information request.
The watchdog hence ruled the complaint was “unsubstantiated, but with other inadequacies found.”
Fear of doxxing
During the Ombudsman investigation, police revealed that they retained a total of three service providers in making and distributing the promotional video. In arguing that the requested information should be withheld, police said that the firms involved pointed to concerns that their corporations and staff might be attacked by people of different political persuasions because of their affiliation with the police.
“All three service providers refused to give consent for the disclosure because they were scared of being doxxed, harassed or intimidated for political reasons…” the report read.
Such concerns were valid, said the police, who described themselves as a “major affected party coming under malicious attacks at the heart of the social unrest since mid-2019.” They said there were instances where shops and businesses which were believed to be pro-police – or had ties with the mainland – suffered physical attacks, loss of business and harassment during the months-long protests triggered by a now-axed extradition bill.
Police said while the requested information did not cover the names of the service providers, some of their identities had been made public since the video was launched. The force told HKFP in January last year that the video was contracted out to local director Dante Lam, but they did not mention other people or companies involved.
Revealing the requested information against the intention of their contractors would hamper their confidence in the force and its negotiation position in future contractual activities, police told the watchdog.
Another reason for rejecting the information request was because police deemed it would set an “inappropriate reference” for potential service providers in the future. The force said the video production involved both contracted-out services and their internal resources, so it was difficult to calculate the value.
Merely disclosing the cost incurred from hiring contractors would be “misleading,” as it “could not properly reflect the total production expenses,” police said.
“[Police] considered that information provided by those three service providers, including the cost of the contract-out services, was [a matter of] commercial confidence… Disclosure of the costs may also affect the service providers’ competitiveness and negotiation capacity in the market,” the report read.
Secretary for Security and then-police chief Chris Tang and other police top brass were among the 600-odd officers from more than 15 units who appeared in the video. It also involved other government departments and organisations, the force told HKFP last year.
The official watchdog disagreed with the police argument, however, saying it was “well understood” by service providers that there was no objective criteria to appraise an artistic and creative production. The report stated that the general public and contractors would recognise how the cost of different intangible services could not be directly compared or cross-referenced.
The Ombudsman added that, while it agreed with the law enforcement agency that it was difficult to quantify the internal resources deployed for the video production, sufficient information on this should always be disclosed in the relevant tender or quotation documents to allow bidders to better understand the procurement exercise.
“With proper explanation, the public would also understand the disclosed production cost is only part of the actual input,” the Ombudsman officer wrote, adding there were “insufficient grounds” for the police to cite paragraph 2.9 (a) of the code in turning down HKFP’s information request.
‘No overriding public interest’
Responding to HKFP’s assertion that the video production cost was an important matter of public interest, the police said all quotation and tender exercises were conducted “in strict compliance with the government procedures and relevant requirements.”
The service providers involved in the production were engaged through invitations for quotations rather than an open tender, police added, as the total value of the service contracts did not exceed the HK$1.4 million limit stipulated in the Stores and Procurement Regulations. This type of undertaking meant the force was not required to publicise the contractors’ names or the contract value, police told the Ombudsman.
“In sum, [police] considered the requested information should be withheld… and there was no overriding public interest to disclose the information concerned,” the watchdog wrote.
The Ombudsman pointed to the Government’s Guide to Procurement, which states that the official procuring entities should be accountable the public for the use of public funds. The guidelines also affirm that government departments should be prepared to account for their purchasing decisions.
It is the government’s monthly practice to publish the name of the tenderer awarded the contract and the contract sum on the internet. The watchdog cited this as proof that the authorities did not see such a move as posing harm to its negotiating position, nor that it may constitute a breach of confidentiality.
The current case involved an “exceptional situation,” however, said the Ombudsman, referring the contracted service providers which explicitly refused to give permission to disclose the video production cost.
It therefore accepted the police submission that the revealing the fees and other relevant details may cause harm or prejudice and prevent the force from operating properly and efficiently.
Gov’t ‘expected to release info’
But the watchdog went on to say that in the handling of information requests, government departments should work on the premise that details should be released unless there was a good reason to withhold such data.
“Generally speaking, the government is expected to release information in relation to public money spent on procurement irrespective of contract value should they receive relevant information requests,” it wrote.
Government units should normally refrain from making any commitment to a third party which would compromise their ability to carry out such obligation, the watchdog remarked: “It is unfortunate that due to the unique circumstances of this case, [police] had agreed with the service providers not to disclose the requested information.”
Police should also weigh the impact of the information disclosure on the contractors and their future cooperation against “the public interest in [police] being seen to uphold the integrity and transparency of the procurement system,” the report read.
“We must emphasise that when the unique and exceptionally circumstances in this case no longer exist, the ‘harm or prejudice’ test may well have a different result,” the Ombudsman wrote.
Support press freedom & help us surpass 1,000 monthly Patrons: 100% independent, governed by an ethics code & not-for-profit, Hong Kong Free Press is #PressingOn with impartial, award-winning, frontline coverage.